Opinion
No. 07-30095.
Argued and Submitted July 7, 2008.
Filed July 23, 2008.
Joseph E. Thaggard, USHE — Office of the U.S. Attorney, Helena, MT, for Plaintiff-Appellee.
Allen Beck, William F. Hooks, for Defendant-Appellant.
Appeal from the United States District Court for the District of Montana, Charles C; Lovell, District Judge, Presiding. D.C. No. CR-06-00065-CCL.
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th cir.R.36-3.
Ashley Lynn Gray appeals the district court's denial of her motion for a new trial, after her conviction for manslaughter and use of a firearm in a violent crime. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
The district court correctly held that Gray failed to satisfy the five-part test necessary to prevail on a Rule 33 motion based on newly discovered evidence. See Fed.R.Crim.P. 33; United Stales v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005) (describing five-part test). Gray failed to introduce any evidence supporting her as sertion that she exercised due diligence in attempting to retain a forensic psychologist prior to trial. See Harrington, 410 F.3d at 601. Moreover, the psychologist's report does not "indicate that a new trial would probably result in an acquittal." Id. at 601. Gray testified at trial that she could not remember most of the events surrounding the shooting. An expert's report describing the reasons for her post-shooting amnesia has no bearing on her ultimate guilt or innocence. Accordingly, the district court did not abuse its discretion by denying Gray's motion for a new trial.
Nor did the district court abuse its discretion by failing to order a competency hearing. The district court correctly concluded that Ashley's inability to remember the events of the shooting did not, alone, create a bona fide doubt about her competence. See United States v. Fernandez, 388 F.3d 1199, 1251 (9th Cir. 2004) (noting that a trial court must order a competency hearing "if a reasonable judge would have . . . a bona fide doubt [about the defendant's] competence" (internal quotations omitted)).
AFFIRMED.